A jury
convicted Petitioner, John C. Crim, of eight counts of rape
of a child and six counts of aggravated sexual battery.
Petitioner sought post-conviction relief, and his petition
was denied after a hearing. On appeal, Petitioner asserts
that his trial counsel were deficient in omitting an argument
pertaining to the suppression of his confession; in failing
to obtain the testimony of a witness; in failing to object to
jury instructions regarding the mens rea required for
aggravated sexual battery; and in failing to object to jury
instructions regarding unanimous acquittal. After a thorough
review of the record, we conclude that Petitioner has not
established any grounds for relief, and we affirm the
judgment of the post-conviction court.

Thomas
T. Woodall, P.J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.

OPINION

THOMAS
T. WOODALL, PRESIDING JUDGE.

Trial

Petitioner
was indicted for numerous sexual crimes that he committed
against his daughter between 2004 and 2007, during the times
he exercised his right of visitation in the summer months.
The proof at trial included the victim's testimony
regarding the crimes and Petitioner's interview with law
enforcement, during which he acknowledged having repeated
sexual contact with the child from the time she was seven
years old. See State v. John C. Crim, No.
2010-01281-CCA-R3-CD, 2012 WL 76891, at *5 (Tenn. Crim. App.
Jan 10, 2012), perm. app. denied (Tenn. Apr. 12,
2012).

Prior
to trial, Petitioner's two attorneys sought to have the
recorded interview suppressed. We note here that the audio
recording of the interview was not included in the record on
direct appeal or in the post-conviction record. See
id. at *7 ("Initially, we note that in ruling on
the motion to suppress, the trial court heavily relied on
Crim's tape recorded interview, which is not contained in
the record on appeal."). The parties, prior to the
post-conviction hearing, stipulated to the authenticity of
certain trial transcripts, including the "Requested
Excerpt from Court Proceedings" regarding the
suppression hearing and a transcript recording the
court's ruling on the issue. These transcripts were not
included in the post-conviction record but are part of the
direct appeal. We note that the transcript of the hearing is
labeled an "excerpt" and that the transcript
contains only the testimony of law enforcement. However, the
hearing also included the testimony of Petitioner, and the
court made a specific finding that Petitioner's testimony
was not credible, in particular finding that he testified he
was intimidated but that the audio recording demonstrated
that he was at ease and laughing. A transcript of an excerpt
from Petitioner's testimony was attached to
Petitioner's pro se post-conviction petition but was not
listed in an agreed order regarding the authenticity of
certain transcripts and was not part of the record on direct
appeal. It is unclear if other witnesses testified at the
suppression hearing.

In the
written motion to suppress, trial counsel argued that
Petitioner was "retained . . . for an unreasonable
period of time while the detective made subtle threats, made
promises, and exerted improper influence." The motion
also detailed the alleged promises and cited Bram v.
United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187
(1897), for the proposition that a confession cannot be
extracted by threats or promises. At the commencement of the
hearing, the prosecutor stated, "just for clarification
. . . I want to make sure we're here just on the narrow
issue of whether Mr. Crim was in custody during this
interview." The trial court replied that it believed
that "it is that one single issue to determine whether
or not he was" because the parties had stipulated that
warnings regarding self-incrimination were not given prior to
the interview. The defense did not respond.

At the
suppression hearing, Detective Brian Harbaugh testified that
he was contacted by authorities in Pennsylvania regarding the
victim, that he contacted Petitioner, and that the two
arranged a mutually convenient time for Petitioner to come to
the police station for an interview. Detective Harbaugh
explained to Petitioner the reason he wanted to speak to him
at the time they arranged the interview. Detective Harbaugh
testified to the circumstances of the interview bearing on
the question of custody, including that Petitioner was told
he was free to leave and that his route of egress was open.

During
the hearing, trial counsel questioned Detective Harbaugh
regarding statements he had made to Petitioner calculated to
elicit a confession. Detective Harbaugh acknowledged that he
repeatedly assured Petitioner that "what was said in
that room would stay in that room." He also told
Petitioner that he would "help" him and that he and
his family could then "go back to whatever they
do." Detective Harbaugh explained that incarceration
would help Petitioner refrain from future crime and that
"we obviously have different understandings of what help
is, and I'm aware of that. I know obviously if I told him
that my form of help is for him to be incarcerated, that
wouldn't necessarily agree with him, so I don't get
into details about it." He also acknowledged saying that
he "just wanted to work things out in that room"
and again explained that he meant he would incapacitate
Petitioner through incarceration. He acknowledged bluffing
and that he told Petitioner that a laboratory was examining
DNA from the victim's clothing to imply that law
enforcement knew more than they did. He denied promising
Petitioner anything. Detective Harbaugh's testimony at
trial was consistent with his testimony at the suppression
hearing. He acknowledged assuring Petitioner that his
statement would "stay in that room" and stated he
may have told him that "the consequences for an honest
person would be counseling and he and his group would get
back to whatever it is they do." He acknowledged he was
not completely honest with Petitioner.

The
trial court found that Petitioner was not in custody. The
trial court noted that the tone of the interview remained
"conversational, not confrontational, " that
Petitioner was laughing throughout the interview, and that
Petitioner gave long responses which volunteered information
beyond that requested by law enforcement. The trial court
further found that while Detective Harbaugh stated that
police were testing the victim's clothing when they were
not, Detective Harbaugh also noted to Petitioner that
"[s]ometimes this stuff just doesn't pan out."
The trial court found that Detective Harbaugh's
representation that Petitioner's statement would
"stay here" was not made in the context of not
sharing the information with prosecutors but "strictly
in the context of not sharing it with the other members of
Mr. Crim's family. . . . It was regarding his family and
for no other reason." This ruling was based on the audio
recording and the context of the statement. The motion to
suppress was denied, and the audio recording was admitted at
trial.

At
trial, the jury was instructed that the State was required to
prove each element of each offense beyond a reasonable doubt.
The jury was also instructed:

If you unanimously find the Defendant guilty of the indicted
offense beyond a reasonable doubt you do not
consider any lesser included offense to that count of
the indictment. If you unanimously have reasonable doubt as[]
to the Defendant's guilt to the more serious indicted
offense, then and only then, will you consider the
Defendant's guilt or innocence of the lesser included
offenses. (Emphasis added).

The
instruction regarding unanimous reasonable doubt was repeated
for each offense.

Regarding
the aggravated sexual battery charges, the jury was
instructed that the State must prove:

(1) The Defendant had unlawful sexual contact with the
alleged victim in which the Defendant intentionally touched
the alleged victim's intimate parts, or the clothing
covering the immediate area ...

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